Citation Nr: 0205176
Decision Date: 05/24/02 Archive Date: 06/03/02
DOCKET NO. 96-48 958A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Chicago,
Illinois
THE ISSUES
1. Entitlement to service connection for psychiatric
disability, to include post-traumatic stress disorder.
2. Entitlement to service connection for respiratory
disability, to include as due to an undiagnosed illness.
3. Entitlement to service connection for a stomach
disability, to include as due to an undiagnosed illness.
4. Entitlement to service connection for a joint disability,
to include as due to an undiagnosed illness.
5. Entitlement to service connection for numbness of the
upper extremities, to include as due to an undiagnosed
illness.
6. Entitlement to service connection for a cognitive
disability, to include as due to an undiagnosed illness.
7. Whether a notice of disagreement was timely filed with
respect to the denial of service connection for bilateral
lower extremity numbness, to include as due to an undiagnosed
illness.
REPRESENTATION
Appellant represented by: AMVETS
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
J. M. Daley, Counsel
INTRODUCTION
The veteran had active service from September 1989 to January
1993.
This matter is before the Board of Veterans' Appeals (Board)
on appeal from the Department of Veterans Affairs (VA)
Regional Office (RO), located in Chicago, Illinois.
When this case was before the Board in October 1999, it was
remanded for further RO actions, to include issuance of a
statement of the case on the matter of whether a timely
notice of disagreement had been received with respect to the
RO's July 1997 denial of service connection for disability
manifested by lower extremity numbness. The RO issued such
statement of the case on October 20, 1999, and at that time
advised the veteran of the need to file a substantive appeal
on the timeliness matter. In a supplemental statement of the
case issued on November 30, 1999, the RO advised the veteran
that no timely substantive appeal on the timeliness matter
had been received. However, a statement from the veteran
indicating his intent to appeal (he cited the October 20,
1999 statement of the case and letter) and requesting
adjudication of the lower extremity numbness matter is date-
stamped as received by the RO on November 16, 1999. Such
correspondence may be accepted as a substantive appeal and,
accordingly, the matter of the timeliness of the notice of
disagreement is properly before the Board and is decided
herein. The remaining issues are addressed in the remand
that follows the order section of this decision.
FINDINGS OF FACT
1. On July 28, 1997, the RO notified the veteran of the
denial of entitlement to service connection for disability
characterized by numbness of the lower extremity.
2. No written communication expressing disagreement with the
RO's denial of service connection for disability
characterized by lower extremity numbness was received from
the veteran or his representative until January 1999, when
written argument was submitted by the veteran's
representative.
CONCLUSION OF LAW
A timely notice of disagreement with the RO's July 1997
rating decision denying service connection for bilateral
lower extremity numbness has not been received.
38 U.S.C.A. §§ 7105, 7108 (West 1991); 38 C.F.R. §§ 20.200,
20.201, 20.302 (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
An appeal consists of a timely filed notice of Disagreement
in writing and, after a Statement of the Case has been
furnished, a timely filed Substantive Appeal. 38 C.F.R.
§ 20.200.
A Notice of Disagreement is a written communication from
either the veteran or, if applicable, his representative
expressing dissatisfaction or disagreement with an
adjudicative determination by the agency of original
jurisdiction and a desire to contest the result
38 C.F.R. § 20.201.
Except in the case of simultaneously contested claims, a
claimant, or his or her representative, must file a Notice of
Disagreement with a determination by the agency of original
jurisdiction within one year from the date that that agency
mails notice of the determination to him or her. Otherwise,
the decision will become final and binding on the veteran.
The date of mailing the letter of notification of the
determination in question will be presumed to be the same as
the date of that letter for purposes of determining whether
an appeal has been timely filed. 38 U.S.C.A. § 7105(b)(1);
38 C.F.R. § 20.302.
Here, the pertinent procedural history is as follows. On
July 28, 1997, the RO notified the veteran (at his address of
record) that entitlement to service connection for numbness
of the lower extremities was denied. A review of the claims
file fails to reveal that the RO received any correspondence
expressing disagreement with that denial from the veteran or
his representative within the one-year period following the
July 1997 notification. Rather, the record shows an exchange
of correspondence between the veteran and VA relevant to his
pension claim, as well as receipt of lay statements from
family, co-workers and friends, and medical evidence
pertinent to the veteran's physical and mental complaints.
No written communication addressing the lower extremity
numbness issue was received from the veteran or his
representative until January 1999, long after expiration of
the time period for submitting a Notice of Disagreement
The veteran argues that the completed Form 9 submitted by him
in December 1996 constitutes a timely notice of disagreement.
The Board cannot agree since a submission in December 1996
cannot express disagreement with and a desire to contest a
decision that has not yet been rendered.
The Board notes that if the veteran wishes to reopen his
claim for service connection for numbness of the lower
extremities, he may do so with the submission of new and
material evidence. See 38 U.S.C.A. § 5108 (West 1991);
38 C.F.R. § 3.156 (2001).
ORDER
The Board having determined that the veteran did not submit a
timely notice of disagreement with the RO's July 1997
decision denying entitlement to service connection for lower
extremity numbness, the appeal is denied.
REMAND
Initially, the Board notes that the RO has framed one of the
issues on appeal as entitlement to service connection for
anxiety attacks with various symptoms. In the Board's
opinion, the veteran is not limiting his appeal for service
connection for psychiatric disability to anxiety attacks with
various symptoms. Rather, he is claiming that his
psychiatric disability, regardless of the diagnosis or lack
of a diagnosis, is service connected. It was for this reason
that the Board framed the issue as entitlement to service
connection for psychiatric disability when the case was
remanded in October 1999. While the case was in remand
status, the RO denied service connection for post-traumatic
stress disorder (PTSD) in rating decisions of August 2000 and
September 2001. It did not issue a supplemental statement of
the case addressing the PTSD issue. Again, in the Board's
view, the veteran's appeal for service connection for
psychiatric disability is not limited to any particular
psychiatric disorders or any particular psychiatric symptoms.
Therefore, a supplemental statement of the case which
reflects appropriate consideration of the issue of
entitlement to service connection for psychiatric disability,
to include PTSD, is needed.
Moreover, the Board has determined that additional
psychiatric and other examinations are needed to determine
the nature and etiology of existing psychiatric disability
and to otherwise address the nature and etiology of the
veteran's claims of various psychiatric and physical
manifestations.
In this regard the Board notes that the medical evidence of
record, to include Social Security Administration, VA and
private medical evidence, shows various psychiatric
diagnoses. The Board remanded the psychiatric issue for an
examination to clarify the existence, nature and etiology of
each currently present acquired psychiatric disorder. An
October 2000 VA psychiatric examination report shows no Axis
I diagnosis. However, that examiner did not, as requested in
the Board's October 1999 remand, sufficiently address the
existence and implications of psychiatric manifestations such
as the veteran's history of panic/anxiety attacks with
associated upper extremity numbness and shortness of breath.
See Stegall v. West, 11 Vet. App. 268 (1998). The October
2000 VA psychiatric examiner indicated the veteran had a
personality disorder and substance abuse issues, but did not
include any discussion of the veteran's noted history of
anxiety attacks or otherwise reconcile the veteran's
complaints and documented diagnostic history with the more
current examination results. Also, the Board notes that the
report of peripheral nerve examination completed in October
2000 does include a diagnosis of hyperventilation syndrome
associated with anxiety attacks.
The Board also notes that although the medical evidence of
record fails to identify any objective evidence of memory
loss or other pathology causing cognitive impairment, the
psychiatric examination requested in this remand may
contribute clarifying information relevant to the veteran's
memory complaints and as such adjudication of that matter
should be deferred pending the results of the remand.
Further with respect to the above, the Board notes that there
is medical evidence of record, current and past, identifying
a hyperventilation syndrome secondary to anxiety attacks.
There are also records identifying neuropathy of the upper
extremities. The most-current VA examination reports appear
to recognize and address such only as occurring coincident
with the hyperventilation/panic attacks and there is other
contradictory evidence in the file indicating there is no
pathology behind the veteran's complaints. No clear opinion
as to the existence and etiology of such has been obtained.
The veteran also complains of aches and pains in his
shoulders, hips, thighs, knees and shins, as well as his
back. Although joint disability of the hips, thighs, shins
and back has not been identified in the current medical
record, there is medical evidence of a diagnosis of
patellofemoral pain syndrome of the knees. Notably, the
veteran had a pre-service left knee injury and surgery,
without evidence of in-service injury to either knee but with
continuous knee complaints following service. An opinion to
clarify the etiology of existing knee disability is therefore
warranted. The Board also notes that although there is
competent medical evidence attributing the veteran's stomach
complaints to lactose intolerance, an adequate medical
opinion addressing whether any current stomach disorder is
chronic or addressing the etiology of the lactose intolerance
is not of record.
In light of these circumstances, the case is REMANDED to the
RO for the following:
1. If the veteran identifies any
outstanding evidence or information
pertinent to his claims, the RO should
take appropriate steps to obtain such
evidence and/or information. It should
also request the veteran to submit any
such evidence or information that it is
unable to obtain.
2. Then, the RO should arrange for
examinations of the veteran by physicians
with appropriate expertise to determine
the nature, extent and etiology of any
currently present upper extremity
numbness, memory or cognitive impairment,
joint disability (to include the
shoulders, hips, thighs, shins, knees and
back), respiratory disability,
psychiatric disability and stomach
disability.
The claims folder must be made available
to and reviewed by the examiners.
All appropriate tests and studies should
be conducted.
The rationale for all opinions expressed
must also be provided.
All objective indications of the claimed
disabilities should be identified. In
addition, the specific manifestations of
each diagnosed disorder should be
identified and all objective indications
of chronic disability, which are not
attributable to a known clinical
diagnosis, should be specifically
identified. The psychiatric examiner
should specifically address whether
anxiety attacks, memory impairment, upper
extremity numbness, stomach cramps,
shortness of breath, joint pains and/or
other physical complaints are
manifestations of any diagnosed
psychiatric disorder.
With respect to each diagnosed disorder,
the appropriate examiner should provide
an opinion as to whether it is at least
as likely as not that the disorder is
etiologically related to the veteran's
military service. If the psychiatric
examiner is of the opinion that no Axis I
diagnosis is in order, he or she should
support this conclusion, to include a
discussion of the other evidence of
record showing Axis I diagnoses.
3. Then, the RO should undertake any
other indicated development and
readjudicate the issues remaining on
appeal. If any benefit sought on appeal
is not granted to the veteran's
satisfaction, he and his representative
should be provided a supplemental
statement of the case and afforded an
appropriate opportunity to respond. If
the veteran's claim for service
connection for psychiatric disability
remains at issue, the supplemental
statement of the case should address the
claim as one encompassing disability from
an undiagnosed illness and disability
from any diagnosed psychiatric disorder.
The veteran and his representative should
then be afforded an appropriate
opportunity to respond.
Thereafter, the case should be returned to the Board for
further appellate action, if otherwise in order. The veteran
need take no action until he is otherwise notified by the RO.
By this remand the Board intimates no opinion as to any final
outcome warranted.
The veteran has the right to submit additional evidence and
argument on the matters the Board has remanded to the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This case must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the United States Court of Appeals for Veterans
Claims for additional development or other appropriate action
must be handled in an expeditious manner. See The Veterans'
Benefits Improvements Act of 1994, Pub. L. No. 103-446,
§ 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 2001) (Historical and Statutory Notes).
In addition, VBA's
Adjudication Procedure Manual, M21-1, Part IV, directs the
ROs to provide expeditious handling of all cases that have
been remanded by the Board and the Court. See M21-1, Part
IV, paras. 8.44-8.45 and 38.02-38.03.
Shane A. Durkin
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.